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Note: Lee Bantle presented this article at the 2010 National Convention of the National Employment Lawyers Association in Washington, D.C.

Challenging workplace discrimination against LGBT people raises several issues that do not often arise in Title VII litigation. This article addresses these issues from a practical standpoint and discusses how they affected a case which my firm tried to a jury in federal court.

In analyzing a potential case, the first and most fundamental question is whether there is a statute which makes sexual orientation discrimination unlawful in the particular jurisdiction. At the time this article was submitted, prospects were good for the passage of a federal law – the Employment Non-Discrimination Act (“ENDA”) which would prohibit employers from discriminating on the basis of sexual orientation and gender identity. My co-panelists have addressed in their articles varying theories which can be used to pursue sexual orientation and gender identity cases absent a statute making sexual orientation and gender identity a protected category. This article assumes that a protective statute, such as ENDA or the New York City Human Rights Law, is in place.

Proving Knowledge of the Plaintiff’s Sexual Orientation

A suit alleging discrimination based on sexual orientation raises the central problem of proof that any discrimination case raises, namely, establishing at trial that the adverse action was motivated by discriminatory animus. Yet, there is often another hurdle in a sexual orientation case. It must first be established that the decision-makers had knowledge of the plaintiff’s sexual orientation. Ideally, the plaintiff is openly gay at work, has brought his or her life partner to the holiday party, or has otherwise revealed his orientation. But if not, you must consider whether there is a reasonable possibility of proving knowledge at trial.

Discovery, properly conducted, may yield substantial admissible evidence. Has your client’s sexuality been the subject of employee gossip which reached the ears of management? (The hearsay rule should not preclude admission of such evidence because it goes to state of mind, not truth.) Did your client solicit funds for the GMHC AIDS walk? Is your client’s life partner listed as the beneficiary of a life insurance policy? Did your client bristle and walk away when a gay joke was told? Is there a picture of your client’s life partner on his or her desk? All of these types of inquiries, and others which your client may be able to suggest, should be pursued.

Below are sample questions which can be used in cases in which the decision-maker’s knowledge of the plaintiff’s sexual orientation is at issue:

Do you know what P’s sexual orientation is?

When did you learn that he was gay?

Have you ever had communications with anyone about his sexual orientation?

Did you ever suspect that he might be gay before knowing it?

Did anyone tell you that he might be gay?

Did you tell anyone that he might be gay?

Did you know P was gay when you hired him?

Do you know whether he has a male life partner/spouse?

When did you learn that?

Do you know who he lived with while he was an employee of D?

Do you know whether he had a commitment ceremony with another man?

How did you learn that?

Anyone in company mention to you his male life partner?

Anyone in company mention to you his commitment ceremony?

You were at P’s deposition where he testified that a colleague brought up the subject of his sexual orientation at an event at the Metropolitan Museum. Do you remember hearing that testimony?

Had you heard anything about that incident prior to the termination of P?

Subsequent to his termination?

Ever heard of Fire Island?

Ever heard that it is a popular destination for gay men?

Know that there are gay communities on Fire Island?

Ever heard of The Pines, Cherry Grove?

Aware that P spent vacation time on Fire Island?

When became aware?

Ever notice awkwardness when P was asked questions about his private life?

Ever make you suspect he was hiding something?

Even in cases where you cannot establish that the decision-maker was aware of the plaintiff’s sexual orientation, you still may be able to prevail if the decision-maker was influenced by someone who did know of the plaintiff’s sexual orientation, under what is known as the “cat’s paw” or “rubber stamp” doctrine. See, e.g., Arendale v. City of Memphis, 519 F.3d
587, 604 n. 13 (6th Cir.2008) (“When an adverse [employment] decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held liable under a ‘rubber-stamp’ or ‘cat’s paw’ theory of liability.”); EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006) (noting that the “cat’s paw” and “rubber stamp” theories of subordinate liability have been “overwhelmingly” endorsed, including by the 3rd , 6th , 7th , 8th , 9th , 11th and D.C. Circuits); Roberts v. Principi, 283 Fed.Appx. 325, 333 (6th Cir. 2008) (defining “cat’s paw” theory where (1) biased subordinate, not nominal decisionmaker, is driving force behind adverse employment action, (2) decisionmaker does not independently evaluate the employee, and (3) biased subordinate “clearly causes” the adverse employment action); Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir.1998) (“In effect, the [biased actor] is the decisionmaker, and the titular ‘decisionmaker’ is a mere conduit for the [biased actor’s] discriminatory animus.”); Cobbins v. Tennessee Dept. of Transp., 566 F.3d 582, 587 n.5 (6th Cir. 2009) (“In the employment discrimination context, what is known as the ‘cat’s paw’ theory refers to a situation in which a biased subordinate, who lacks decisionmaking power, influences the unbiased decisionmaker to make an adverse [employment] decision, thereby hiding the subordinate’s discriminatory intent.”). Courts have found that imposing liability on the employer in this context is in accord with the agency principles and policies underlying Title VII. See, e.g., Roberts v. Principi, 283 Fed.Appx. at 333; BCI Coca-Cola, 450 F.3d at 485-86.

Some courts, notably the Fourth Circuit, interpret the cat’s-paw doctrine narrowly, requiring, inter alia, evidence that the biased actor was principally responsible for the adverse employment action. See Lockheed Martin, 354 F.3d 277, 291 (4th Cir.2004) (en banc) (“[A]n aggrieved employee who rests a discrimination claim under Title VII or the ADEA upon the discriminatory motivations of a subordinate employee must come forward with sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decisionmaker for the employer.”). Other courts, such as the Ninth Circuit have declined to adopt this narrow standard, noting that “many companies separate the decisionmaking function from the investigation and reporting functions, and that … bias can taint any of those functions.” Poland v. Chertoff, 494 F.3d 1174, 1182 (9th CIr. 2007) (quoting BCI Coca-Cola, 450 F.3d at 488); see also Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir. 2004) (criticizing the Fourth Circuit’s approach as “inconsistent with the normal analysis of causal issues in tort litigation”). Under the more expansive standard, bias may be imputed to the employer where the biased subordinate influences the employer’s decision. See Poland, 494
F.3d at 1182 (imputing liability where (1) the biased subordinate “sets in motion a proceeding… that leads to an adverse employment action” and (2) “the plaintiff can prove that the … biased subordinate influenced or was involved in the decision or decisionmaking process.”); BCI Coca- Cola, 450 F.3d at 490-93 (denying summary judgment where the decisionmaker relied primarily on facts provided from a biased subordinate). On the other hand, an employer can usually defeat subordinate bias theories where it performs an independent investigation of the allegations against the employee. Id. at 488.

Proving Bias

While proving knowledge of your client’s sexual orientation is an extra burden, sexual orientation cases will oftentimes yield more comments evidencing bias than Title VII cases. Anti-gay bias is still socially acceptable in some quarters and, indeed, is even sanctioned by some religions. Moreover, there is generally less awareness of the employment protections afforded the LGBT community as compared to persons of color, women, the disabled, etc.

Some people do not shy away from using anti-gay epithets or telling insulting jokes the way they might with respect to gender, race or age. During depositions, you should query every witness on what they have said or heard in this regard. By the time of trial you may have developed quite an arsenal of comments that supports the claim of sexual orientation discrimination. Deposition questions might include any of the following:

Ever been trained on D’s EEO policy?

Do you know whether D prohibits discrimination based on sexual orientation?

Do you agree with D’s policy prohibiting discrimination on the basis of sexual orientation?

Do you agree with laws which prohibit discrimination in employment based on sexual orientation?

Have you ever heard any employee of D make a negative remark about gays or lesbians?

Ever heard any employee of D use the word fag or faggot or dyke or any other derogatory term for gays or lesbians?

Have you ever heard an employee of D use the term “gay” to describe something that is lame, bad, uncool?

Have you ever heard any employee of D make a joke or remark poking fun at gay men or lesbians?

Have you ever heard an employee of D express his or her opinion on whether or not two men or two women should be able to marry?

Have you ever seen or heard an employee of D effect a: lisp, limp wrist, effeminate walk, or other gesture or impression making fun of gay people?

Have you ever heard anyone at D comment about the remarks or actions of others which were negative about gay people?

The Critical Importance of Jury Selection

As we all know, the jurors who decide an employment case are highly important. But in a sexual orientation discrimination case, the composition of the jury is even more critical. In any voir dire panel there are likely to be some people who are not positively inclined toward members of the LGBT community, have religious qualms, or are just not comfortable with the issue. This may impede identification with the plaintiff which is key to winning cases. It is imperative to ensure questioning of potential jurors on their possible bias.

In some jurisdictions, the lawyers are permitted to question the potential jurors. In others, only the judge may question. In either case, do your best to get to the heart of the matter: whether the prospective juror has any negative views or lack of comfort with gay and lesbian individuals. If the judge is doing the questioning, you need to educate him or her on the importance of screening for gay bias and then submit a long list of questions (see below) in the hopes that at least a few will be asked. If you are doing the questioning, then zero in on the issue with care and sensitivity.

Semantics

Using the right language and projecting an aura of comfort is imperative if you are doing the juror questioning. Don’t use the loaded term “homosexual” when referring to the plaintiff. Use “gay” or “lesbian.” You might also say “gay man” or “lesbian woman.” Don’t talk of “gay rights.” This sounds like gays are getting something special that other people don’t get. Talk in terms of “equal rights.” Similarly, if you get into the issue of gay and lesbian people getting married – which you should consider doing since it is Hot Topic Number One right now – talk in terms of “marriage equality,” not “gay marriage.”

Religion

LGBT people are the only protected class who – to my knowledge – are viewed as sinful or immoral by some religions. Obviously, someone who subscribes to these views is not an appropriate juror for a sexual orientation discrimination case. And don’t be fooled by a “hate the sin, but love the sinner” attitude. These people must be screened out.

This may be tricky because asking jurors about their religion may be viewed as an invasion of privacy or, worse, a Batson style violation of the juror’s civil rights. However, inquiring into a juror’s religious views on the specific issue of gay and lesbian relationships should pass muster. In other words, you should be able to ask whether someone has religious views – or has received religious instruction – on the subject of gay and lesbian relationships. Some sample questions are included on the list below.

Nobody wants to appear a bigot

Prospective jurors may not admit their bias in open court for fear of looking bad to you, the judge or other jurors. A stock question, the favorite of judges, does not begin to scratch the surface. “Is there anything about the nature of this case that would render you unable to be a fair and impartial juror?” Very few people will answer yes to this question (unless they want to get out of jury service) for fear of looking bad. Even jurors aware of their biases may say (and even think) that they will not be influenced by such biases in judging the case. You need to go beyond this stock question to uncover juror bias.

One strategy is to question the jurors on their possible bias one by one in private. Many judges will allow this for sensitive questions and, of course, if you are conducting the voir dire unsupervised you can make this choice. This will enable a candid interview where potential jurors will be more likely to reveal their true attitudes.

Challenge biased jurors for cause

If during voir dire you find that a potential juror has biased attitudes, push to have this person removed for cause. Your adversary may try to rehabilitate the juror by asking if he or she could still be fair and impartial despite the biased statement that you elicited. Don’t let that stop you from arguing to the judge that the person must be removed for cause. And make a record for purposes of preserving the issue for appeal.

The dilemma posed by conventional theories of jury selection

There are various theories as to who is a good or bad juror in an employment case. The conventional thinking is that members of racial or ethnic minorities, those with lower incomes, and those with less education tend to be good plaintiff’s jurors in an employment case. They are thought to be more likely to recognize that discrimination occurs and to award substantial sums in the event it is shown. In contrast, those people with higher incomes and more education are thought to be more favorable to the defense in an employment case. The plaintiff’s lawyer in a sexual orientation case faces a dilemma in jury selection in that some of those people generally thought to be good plaintiff’s jurors may be more likely to harbor anti-gay bias than those who are thought to be good defendant’s jurors. This reinforces the need to ensure jurors are screened for bias.

One thing that is clear when looking at demographics is that younger jurors will most likely be better than older jurors. Polling shows that younger people are much more likely than older people to support sexual orientation non-discrimination laws and marriage equality for gay and lesbian people.

Sample Questions

With the caveat that not all of these questions have been tested and some may run into objections from your adversary or the court, here are some suggested questions to help select a panel unbiased on the issue of sexual orientation:

The plaintiff in this case is a gay man. How do you feel about people who are gay?

Does that raise a concern in your own mind about whether you could listen attentively to the evidence or serve as a fair and impartial juror?

Does the fact that plaintiff is a gay man cause you to lean toward the plaintiff, lean toward the defendant or make no difference?

The plaintiff states in this lawsuit that the defendant terminated his employment because he is gay. Do you think employers should or should not be allowed to discharge someone on that basis?

Do you think that gays and lesbians should have the same protection from employment discrimination as African-Americans, Hispanics, Asians and so forth?

Do you personally know any people who are gay or lesbian? Any friends or family members?

How would you feel if a sibling or child told you that he or she is gay or lesbian?

Do you have any religious or moral scruples about gay and lesbian relationships?

Have you received any religious instruction about the morality of gay and lesbian relationships?

Would you be comfortable having a gay man or lesbian woman serving as a teacher in your child’s school?

Do you think two men or two women should be able to get married if they want to or are you opposed to that?

If the Court instructs you that discrimination against someone on the basis of his or her sexual orientation is unlawful, would you be able to follow that instruction in reaching a verdict?

The Lessons from One Trial
All of the foregoing issues were implicated in a sexual orientation case tried by my firm in the United States district Court in the Southern District of New York. Federal jurisdiction arose by reason of diversity. The Plaintiff was the New York regional sales manager of the defendant, an international carpeting company, for two years until he was discharged allegedly for performance problems. One of the primary performance issues cited was that Plaintiff was not trusted or respected by some members of his sales team. Plaintiff contended any lack of respect accorded him stemmed from his sexual orientation, not his management ability.

The trial ended with a hung jury. Four jurors reported believing Plaintiff’s sexual orientation was a motivating factor in his discharge, while two jurors reported that they thought it was a factor, but not a significant one. The defendants’ post-trial motion for judgment as a matter of law was denied as falling far short of meeting the high burden under Rule 50. 2002 WL 1870283, 89 Fair Empl. Prac. Cas. (BNA) 1470 (S.D.N.Y. 2002). The case settled at pediation prior to a re-trial.

Discovery in the case yielded significant information concerning the decisionmaker’s knowledge that Plaintiff was gay–even though Plaintiff had been circumspect about this fact at work. In addition to admitting that they knew Plaintiff had a house on Fire Island and that this was a well-known gay destination, the superiors conceded that one of Plaintiff’s subordinates had called them to report that Plaintiff had disclosed that he was gay. A memorandum of the call was made (and turned over in discovery). The fact that Plaintiff was coming out to his sales reps was passed up the management chain to the president of the company.

Discovery also yielded a treasure trove of biased comments and conduct. Two subordinates were reported to have referred to Plaintiff as a “fag” and to have said they did not want to work for him. Various incidents of limp-wristed, lisping role-plays were reported to have occurred at management social events. One decisionmaker was reported to have said that clothes lent to a gay man should be washed in Clorox before being worn again. (The explanation at deposition for this comment made it worse. The declarant explained his concern was prompted by AIDS.) Management also made its case worse at deposition by suggesting that it was improper for Plaintiff to disclose his sexual orientation to subordinates and that this made the subordinates uncomfortable.

Ultimately, the two jurors who sided with the defense said they relied on the objective fact that Plaintiff’s region had missed its budgeted revenue target for the year. They rejected Plaintiff’s explanations for this (employee turnover and the need for more time to rebuild an underperforming region.) Alarmingly, they also contended that as a supervisor, Plaintiff needed to “manage” the negative attitudes his subordinates had about his sexual orientation. Both defense jurors had post-graduate degrees and one served in management. While hindsight is 20/20, it was probably a mistake to use our peremptories on blue collar jurors in favor of these two who were thought to be more enlightened on the issue of sexual orientation. Unfortunately, the voir dire was controlled entirely by the judge who did little but inquire, after saying the plaintiff was gay, whether the prospective jurors could be fair and impartial.

Conclusion

Cases challenging discrimination against LGBT people in the workplace present unique challenges and opportunities. Such cases are likely to become more numerous in the future as more laws are enacted extending workplace protections on this basis. The successful plaintiff’s attorney will be prepared to deal with the legal issues unique to such cases.

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My thanks to Peter Urias who assisted in drafting this article and to the following NELA members who shared their insights with me: Anne Golden, Tito Sinha, Colleen Meenan and Steven Locke.